U.S. BANK TRUST, N.A. v. THOMAS A. MAHER

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3824-17T1


U.S. BANK TRUST, N.A. as
Trustee for LSF9 Master
Participation Trust,

          Plaintiff-Respondent,

v.

THOMAS A. MAHER, MRS.
MAHER, JEAN MAHER, and
MR. MAHER,

          Defendants-Appellants,

and

BANK OF AMERICA, N.A., and
CHILTON MEMORIAL HOSPITAL,

     Defendants.
_______________________________

                    Submitted January 16, 2019 – Decided February 4, 2019

                    Before Judges Currier and Mayer.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Monmouth County, Docket
            No. F-015104-17.

            Thomas A. Maher and Jean Maher, appellants pro se.

            Stern & Eisenberg, attorneys for respondent (Salvatore
            Carollo, on the brief).

PER CURIAM

      Defendants Thomas A. Maher and Jean Maher appeal from a March 2,

2018 order denying their motion to vacate default judgment.1 We affirm.

      We recite the facts necessary to review the matter on appeal. On June 19,

2017, plaintiff U.S. Bank and Trust, N.A., as Trustee for LSF9 Master

Participation Trust, filed a foreclosure complaint against defendants after they

defaulted on their mortgage payment. In accordance with an affidavit filed by

a private process server, defendants were served with the foreclosure complaint

on June 20, 2017. Defendants failed to file a responsive pleading and, on August

3, 2017, default was entered. On that same date, plaintiff dismissed its claims

against "Mr. Maher, unknown spouse of Jean Maher" and "Mrs. Maher,




1
  Defendants' amended notice of appeal is limited to the March 2, 2018 order.
Defendants are not challenging the final judgment of foreclosure dated
September 21, 2017.
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unknown spouse of Thomas A. Maher" because plaintiff ascertained through

personal service of the complaint that Thomas and Jean Maher were married.

      A final judgment of foreclosure was entered on September 21, 2017.

Defendants claimed to be unaware of the foreclosure action until October 2017,

when they received notice of a sheriff's sale scheduled for December 4, 2017. 2

      On February 14, 2018, defendants filed a motion to vacate the sheriff's

sale, vacate the default judgment, and dismiss the complaint. Plaintiff opposed

the motion.

      Defendants argued default judgment should be vacated in accordance with

Rules 4:50-1(c), (d), and (f) and Rule 4:50-3. According to defendants, the

default judgment was void for lack of personal service. Defendants also claimed

the affidavit of service filed by the process server was false.

      In an oral decision of March 1, 2018, the motion judge denied defendants'

motion in its entirety. The judge concluded personal service of the foreclosure

complaint was effectuated on June 20, 2017, and plaintiff complied with the

court rules as defendants were served at the mortgaged property at 5:10 p.m. on

that date. She also found service of the complaint was made "by a disinterested



2
   At defendants' request, the December sheriff's sale was postponed. The
sheriff's sale occurred on June 25, 2018.
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third party responsible to serve process," and the process server certified

defendants were personally served. According to the affidavit of service of the

process, Thomas A. Maher identified himself and then accepted service on

behalf of himself and his wife, Jean.

      The judge found defendants failed to set forth a meritorious defense or

excusable neglect to vacate the default judgment under Rule 4:50-1. The judge,

citing Deutsche Bank Nat'l Trust Co. v. Russo,  429 N.J. Super. 91 (App. Div.

2012), concluded defendants' argument that plaintiff lacked standing, asserted

in the context of a post-judgment application, did not constitute a meritorious

defense to a foreclosure complaint. The judge also rejected defendants' attempt

to challenge the assignment of the mortgage, finding defendants lacked standing

to raise such a challenge.

      We review a trial court's decision to deny a motion to vacate default

judgment under Rule 4:50-1 for an abuse of discretion. U.S. Bank Nat'l Ass'n

v. Curcio,  444 N.J. Super. 94, 105 (App. Div. 2016).         "The trial court's

determination . . . warrants substantial deference, and should not be reversed

unless it results in a clear abuse of discretion."   U.S. Bank Nat'l Ass'n v.

Guillaume,  209 N.J. 449, 467 (2012). In accordance with Rule 4:50-1, a final

judgment may be set aside due to "fraud . . . , misrepresentation, or other


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misconduct of an adverse party," "the judgment or order is void," or "any other

reason justifying relief from the operation of the judgment or order."

      A motion to vacate a default judgment for lack of service is governed by

Rule 4:50-1(d), which authorizes a court to relieve a party from a final judgment

if "the judgment or order is void." Jameson v. Great Atl. & Pac. Tea Co.,  363 N.J. Super. 419, 425 (App. Div. 2003). "A default judgment will be considered

void when a substantial deviation from service of process rules has occurred,

casting reasonable doubt on proper notice." Ibid.

      Determining the sufficiency of service of process is a question of proof.

We have held that "uncorroborated testimony of the defendant alone is not

sufficient" to reject the validity of the return of process. Goldfarb v. Roeger,  54 N.J. Super. 85, 90 (App. Div. 1959).

      Rule 4:4-3 authorizes use of private process servers provided the person

does not have an interest in the litigation. The presumption of correctness

accorded to a sheriff's return of service extends to affidavits of service filed b y

disinterested persons responsible for the service of process. See Jameson,  363 N.J. Super. at 426.

      Here, defendants submitted a self-serving affidavit, stating they were not

properly served with the foreclosure complaint. Defendants' bald assertion is


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insufficient to defeat the presumption accorded to the private process server's

affidavit dated June 23, 2017. See Garley v. Waddington,  177 N.J. Super. 173,

180-81 (App. Div. 1981).

      Defendants failed to provide any evidence refuting or challenging the

process server's affidavit of service. The address for service of the foreclosure

complaint is the mortgaged property where defendants lived. The affidavit of

service also described the person who accepted service. Defendants never

challenged the description of the individual served with the foreclosure

complaint.

      We also reject defendants' argument under Rule 4:50-1(c) and Rule

4:50-3 that plaintiff committed fraud or other misconduct when it dismissed

claims against the "unknown spouses," causing defendants to believe no action

was required to contest the foreclosure. Defendants' argument ignores plaintiff's

continued service of all legal notices regarding the foreclosure action directed

to defendants at the mortgaged property where they resided.

      Defendants' remaining arguments regarding the assignment of the note

and mortgage and plaintiff's standing to sue were not asserted until after the

scheduling of a sheriff's sale. We have declined to disturb default judgments of

foreclosure based on such challenges where defendants waited for a scheduled


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sheriff's sale before presenting a timely defense. Russo,  429 N.J. Super. at 101-

02; Deutsch Bank Trust Co. Americas v. Angeles,  428 N.J. Super. 315, 316,

319-20 (App. Div. 2012).

      Despite defendants' belated assertion of certain defenses, we are satisfied

plaintiff established standing based on an assignment of the mortgage that

predated the filing of the foreclosure complaint. See Deutsche Bank Trust Co.

v. Mitchell,  422 N.J. Super. 214, 224-225 (App. Div. 2011). Plaintiff held a

valid assignment as of December 2015 and had proper standing when it filed the

foreclosure complaint in June 2017.

      Lastly, defendants failed to substantiate "any other reason justifying relief

from the operation of the judgment or order" under Rule 4:50-1(f) to set aside

the default judgment. Defendants set forth no circumstances demonstrating

enforcement of the judgment is unjust, inequitable, or oppressive.              See

Guillaume,  209 N.J. at 484. Defendants' arguments are the same as those

rejected by the trial judge and are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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